EP 1165-2-1
30 Jul 99
the incremental OMRR&R.
6-17. Hazardous, Toxic, and Radioactive Wastes (HTRW). Expending
Civil Works funds is to be avoided for remediation of HTRW.
Construction of Civil Works projects in HTRW-contaminated areas should
be avoided where practicable. The reconnaissance and feasibility
study for each project will routinely include a phased and documented
review to provide for early identification of HTRW potential. Studies
to determine the the existence and extent of HTRW problems will be
treated as study cost and shared accordingly. Investigations for the
purpose of identifying the existence and extent of any HTRW performed
during PED (i.e., prior to execution of the PCA) will be performed by
the Federal Government, and these costs will be included in total
project costs and cost shared in accordance with the basic project
purpose. However, where hazardous substances regulated under CERCLA
are found to exist, the non-Federal sponsor shall be responsible for
any subsequent studies and investigations required to determine the
appropriate response and clean up actions. Should HTRW be discovered
on lands required for the project, the non-Federal sponsor shall not
proceed with land acquisition until mutually agreed upon by both
parties. If the land has already been purchased, the Federal
Government and the non-Federal sponsor shall decide whether to proceed
with construction.
a. Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA) Regulated Contaminants. The design and
construction of remediation measures for CERCLA regulated contaminants
will be the responsibility of the project sponsor and the cost will
not be considered a project cost nor will the sponsor receive credit
for any HTRW response costs. The non-Federal sponsor must indemnify
the Government for all response costs for which the Government is
found liable under CERCLA, except for such response costs or clean up
costs which result from negligence of the Government or its
contractors during construction. If a decision is made to avoid an
HTRW site by redesigning the project (e.g., realignment of a channel
or levee), the costs of redesigning and constructing the change will
be cost shared in accordance with the basic project purpose, even if
the realignment option costs more to construct. For projects which
are not cost shared, any necessary HTRW costs will be a part of
project cost. ER 1165-2-132 provides details for consideration of
HTRW potential at Civil Works projects.
b. Non-CERCLA Regulated Contaminants. For all contaminants
not regulated under CERCLA, but for which there is a validly
promulgated Federal, state, or local requirement necessitating special
action which would apply to the Government and others pursuing similar
initiatives, the cost of the special action necessary to comply with
the requirements will be included in project costs and will be shared
as a construction cost in accordance with the cost sharing provisions
of WRDA 1986. Land value credited to a non-Federal sponsor will be
the fair market value of the land in the condition acquired,
considering any contamination that may be present. Investigations
will be undertaken during the planning phase to indicate the presence
of contaminated material in the project area. Any required action
(e.g., remediation, treatment, handling, disposal) will be included in
the design and cost estimate as part of the project. If, prior to
initiation of project construction, the non-Federal sponsor wishes to
accomplish the required action, the action is considered to be a
separate undertaking, independent of the Civil Works project.
Therefore, for project cost and economic analysis the value of the
land is the fair market value after the required action. The non-
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